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Supplement  to  the  Oregon  Sentinel. 


SPEECH 


HON.  GEORGE  H,  WILLIAMS, 


OF  OREGON, 


ON 


RECONSTRUCTION; 


DELIVERED 


IN  THE  SENATE  OF  THE  UNITED  STATES,  FEBRUARY  4,  1868. 


OFFICE  OF  THE  OREGON  SENTINEL. 
1868. 


r 


Bancroft  Ubr«ry 


RECONSTRUCTION 


The  Senate  having  under  consideration  the  bill 
(II.  11.  Xo.  439)  additional  and  supplementary  to  an 
act  entitled  "An  act  to  provide  for  the  more  efficient 
government  of  the  rebel  States,"  passed  March  2, 
1867,  and  the  acts  supplementary  thereto,  the  pend- 
ing question  being  on  the  motion  of  Mr.  DOOLITTLE, 
to  refer  the  bill  with  instructions  to  the  Committee 
on  the  Judiciary — 

Mr.  WILLIAMS  said : 

Mr.  PRESIDENT  :  On  the^4th  day  of  last  Feb- 
ruary I  introduced  into  the'Senate  the  so-called 
military  reconstruction  bill,  and  although  I  had 
charge  of  the  bill  while  it  was  pending  here  I 
did  not  say  one  word  in  favor  of  its  passage, 
because  expeditious  action  by  Congress  at  that 
time  was  deemed  necessary.  I  hope,  there- 
fore, that  I  may  be  pardoned  if  I  now  tax  the 
patience  of  the  Senate  with  a  brief  discussion 
of  the  constitutionality  of  the  reconstruction 
acts  of  Congress. 

People  everywhere  are,  divided  upon  this 
question.  Some  denounce  these  acts  as  wholly 
unwarranted  by  the  Constitution,  while  others 
claim  with  equal  confidence  and  zeal  that  they 
are  necessary  and  rightful  legislation.  No 
argument  unfavorable  to  the  validity  of  these 
acts  can  be  derived  from  this  difference  of 
opinion,  for  it  is  a  difference  that  has  existed 
as  to  all  the  measures  of  Congress  for  the  sup- 
pression of  the  rebellion  from  the  beginning 
of  the  war  down  to  the  present  time.  When 
the  rebellion  was  organized  there  was  a  large 
number  of  persons  in  the  country  who  took 
the  ground  that  the  General  Government  had 
no  constitutional  power  to  coerce  a  State  into 
submission  to  its  authority,  and  they  filled  the 
land  with  a  clamor  to  that  effect.  Buchanan's 
Attorney  General  advised  the  Administration 
to  which  he  belonged  that  the  Constitution 
conferred  upon  Congress  no  power  to  coerce  a 
Stale;  and  the  same  distinguished  individual 
is  it'.rv  conspicuous  in  advising  the  executive 
and  judicial  departments  of  the  Government 
that  the  reconstruction  acts  of  Congress  are 
unconstitutional.  The  popular  clamor,  there- 
lore,  that  is  poured  into  our  ears  as  to  the 


unconstitutionally  of  the  reconstruction  acts, 
proves  no  more  than  the  same  sort  of  clamor 
did  as  to  the  unconstitutionality  of  these  acts 
that  were  adopted  for  the  suppression  of  the 
rebellion.  Indeed,  sir,  the  present  is  but  a 
continuation  of  the  clamor  that  was  raised  when 
the  rebel  guns  were  turned  upon  Fort  Sumter, 
and  with  some  exceptions  it  is  made  by  iden- 
tically the  same  men.  The  men  whose  opinions, 
if  they  had  4beeu  adopted,  would  confessedly 
have  proved  the  destruction  of  this  nation,  as 
it  seems  to  me,  are  not  now  very  safe  guides 
to  follow. 

I  assume,  what  I  suppose  no  Senator  will 
controvert,  that  the  Constitution  confers  upon 
Congress  the  power  to  suppress  a  rebellion,  and 
that  it  also  confers  upon  Congress  the  right  to 
use  those  means  that  are  necessary  and  proper 
to  execute  that  power.  When  eleven  of  the 
slaveholding  States  combined  to  divide  and  de- 
stroy the  Union  they  certainly  did  constitute  a 
rebellion.  To  give  that  rebellion  success  each 
one  of  these  States  formed  a  government  in- 
dependent of,  the  Constitution  of  the  United 
States,  and  over  these  they  placed  a  confederate 
government  in  open  hostility  to  the  Govern- 
ment of  the  Union.  Is  it  not  perfectly  clear 
that  the  purpose  of  these  States  was  to  create 
within  the  original  jurisdiction  of  the  United 
States  a  nationality  as  foreign  to  and  distinct 
from  the  American  Union  as  France  is  distinct 
from  the  empire  of  Great  Britain? 

What  were  the  purposes  of  the  General  Gov- 
ernment? One  was  to  overthrow  and  remove 
these  rebel  State  governments,  and  the  other 
was  to  replace  them  with  governments  that  were 
in  harmony  with  and  in  subordination  to  the 
Constitution  of  the  United  States.  Both  of 
these  objects  were  equally  necessary  to  insure 
complete  success  to  the  Government  of  the 
Union,  and  both  were  equally  constitutional. 
War  accomplished  the  one  purpose ;  war  de- 
molished and  removed  the  rebel  State  govern- 
ments ;  and  the  object  of  the  reconstruction 
acts  of  Congress  is  to  put  in  the  place  of  the 
rebel  governments  so  removed  governments 


ft 

4 


tnat  are  loyal  to  the  Union  and  republican  in 
form.  J  affirm  that  it  was  the  constitutional 
and  inevitable  effect  of  the  success  of  the  Union 
cause  in  the  late  struggle  to  reduce  those  States 
that  were  arrayed  in  hostility  to  the  Federal 
Union  to  the  condition  of  conquered  States, 
and  that  in  such  condition  they  had  no  claims 
whatever,  constitutional  or  otherwise,  that  did 
not  appeal  to  the  magnanimity  and  moderation 
of  the  conquerors. 

Let  it  not  be  forgotten,  Mr.  President,  that 
this  rebellion  was  no  combination  of  indi- 
viduals, each  one  acting  upon  his  own  respon- 
sibility ;  it  was  no  unlawful  assembly  of  mad- 
dened and  excited  men  ;  no  mere  mob  ;  but  it 
was  a  combination  of  States.  When  this 
nation  was  convulsed  from  its  center  to  its 
circumference  by  the  convulsions  of  civil  war 
it  was  because  great  political  bodies  were  in 
motion,  shot  madly  from  their  spheres,  and 
came  together  in  armed  collision.  Sir,  these 
rebel  communities  went  into  the  rebellion  as 
States,  they  fought  as  States,  they  were  de- 
feated as  States,  and  as  States  they  became 
and  are  prostrate  and  powerless  in  the  hands  of 
those  by  whom  they  were  conquered ;  and  the 
only  claims  which  they  have  are  upon  the 
clemency  and  kindness  of  those  who  triumphed 
in  that  struggle.  When  discussion  arose  at 
the  breaking  out  of  the  rebellion  it  was  ob- 
jected by  Buchanan's  Administration  that  the 
Federal  Gbvernment  had  no  power  to  act  be- 
cause States  were  arrayed  against  the  Federal 
Government;  but  now  it  suits  the  convenience 
and  purposes  of  the  same  individuals  Jo  claim 
that  this  gigantic  rebellion  was  a  conflict,  be- 
tween individuals,  to  be  followed  by  no  other 
consequences,  political  or  legal,  except  that 
each  person  concerned  may  be  brought  before  a 
court  of  justice  and  prosecuted  and  punished 
as  an  individual  criminal.  To  show  that  this 
view  of  the  subject  is  sustained  by  authority 
I  invite  the  attention  of  the  Senate  to  the 
decision  of  the  Supreme  Court  made  in  -the 
case  of  the  Brilliante,  reported  in  the  second 
volume  of  Black's  Keports,  page  072.  in  which 
the  court  say : 

"Hence,  in  organizing  this  rebellion  they  have 
acted  as  States,  claiming  to  be  sovereign  over  all 
persons  and  property  within  their  respective  limits, 
nnd  asserting  their  right  to  absolve  their  citizens 
from  their  allegiance  to  the  Federal  Government. 
Several  of  these  States  have  combined  to  form  a  new 
confederacy,  claiming  to  bo  acknowledged  by  the 
world  as  a  sovereign  State." 

So  that  the  Supreme  Court  of  the  United 
States  have  affirmed  the  doctrine  which  I  main- 
tain and  declared  that  the  South  went  into  the 
late  struggle  as  States.  Independent  of  any 
precedents  or  authorities,  it  would  seem  to  be 
the  dictate  of  common  sense  that  when  a  State 
repudiates  the  Constitution  and  denies  its  juris- 
diction and  obligations,  such  a  State  could  not 


at  the  same  time  claim  the  privileges  and  bene- 
fits conferred  by  the  Constitution.  Taking  the 
ground  of  the  ultra  States  rights  men,  that  the 
Constitution  is  a  mere  compact  between  sov- 
ereign States,  and  according  to  the  admitted 
principles  of  law  it  would  follow  that  if  one  State 
violated  the  compact  it  thereby  forfeits  all  claim 
to  the  advantage  or  benefit  under  the  broken  and 
rejected  compact.  Is  it  not  unreasonable  to 
say  that  the  State  of  South  Carolina,  after  it 
had  declared  itself  absolved  from  all  allegiance 
to  the  Constitution  of  the  United  States  and 
expended  its  utmost  energies  to  maintain  that 
declaration,  has  precisely  the  same  rights  under 
the  Constitution  that  the  State  of  New  York 
has,  that  not  only  maintained  its  allegiance 
but  poured  out  its  blood  and  treasure  like 
water  to  maintain  the  rightful  jurisdiction  of 
the  Union?  Sir,  is  there  any  law  of  God  or 
man  that  sanctions  such  an  absurdity? 

Much  bitter  denunciation  is  heaped  upon 
the  reconstruction  acts  of  Congress,  because, 
as  it  is  alleged,  they  ignore  the  constitutional 
rights  of  the  revolted  States,  and  because,  as 
it  is  said,  they  assume  that  those  States  are 
not  entitled  to  the  great  rights  of  Magna  Charta, 
to  the  right  of  trial  by  jury,  and  the  privilege  of 
the  writ  of  habeas  corpus. 

Numerous  acts  of  Congress  may  be  cited 
to  show  that  the  legislative  department  of  the 
Government  assumed  at  the  beginning  of  the 
rebellion  and  since  that  time  has  adhered  to 
the  assumption  that,  in  consequence  of  the 
war  waged  upon  the  Federal  Union  by  the 
rebel  States,  they  lost  or  forfeited  their  con- 
stitutional rights.  Sir,  to  send  an  army  into 
those  States  to  devastate  the  country,  to  de- 
stroy property,  and  to  kill  the  people  is  an  act 
which  utterly  ignores  their  right  to  any  pro- 
tection of  life,  liberty,  or  property  under  the 
Constitution  of  the  United  States.  Take  the 
confiscation  act  as  an  example.  A  law  is  en- 
acted by  which  the  property  of  a  certain  class 
of  individuals  is  subjected  to  seizure  by  the 
public  authorities  without  any  right  of  trial  by 
jury;  and  of  course  that  law  proceeds  upon 
the  ground  that  those  upon  whom  it  is  to  oper- 
ate have  no  riglit  to  protection  under  the  Con- 
stitution. I  refer  upon  this  question  to  the 
deliberate  judgment  of  the  Senate,  as  indi- 
cated by  a  resolution  to  which  the  Senator  from 
Indiana  referred  the  other  day,  and  I  will  read 
that  resolution  and  the  vote  upon  it.  On  the 
1st  day  of  July,  1864,  the  Senate  of  the  United 
States  adopted  this  resolution: 

"  Thatwhen  the  inhabitants  of  any  State  have  been 
declared  in  a  state  of  insurrection  against  the  United 
States  by  proclamation  of  the  President  by  force  and 
virtue  of  the  act  entitled  'An  act  further  to  provide 
for  the  collection  of  duties  on  imports,  and  fqjvither 
purposes,'  approved  July  13. 18G1,  they  shall  be.  ami 
are  hereby,  declared  to  be  incapable  of  casting  any 
vote  for  electors  of  President  or  Vice  President  of  the 
Uuited  States,  or  of  electing  Senators  or  Represent- 


atives  in  Congress  until  said  insurrection  in  said  State 
is  suppressed  or  abandoned,  and  said  inhabitants 
have  returned  to  their  obedience  to  the  Government 
of  the  United  States,  nor  until  such  return  to  obe- 
dience shall  be  declared  by  proclamation  of  the  Pres- 
ident, issued  by  virtue  of  an  act  of  Congress  here- 
after to  be  passed,  authorising  the  same." 

And  all  the  Senators,  including  the  Senator 
from  Indiana  [Mr.  HEXDRICK.S]  and  the  Sen- 
ator from  Wisconsin,  [Mr.  DOOUTTLE,]  voted 
in  favor  of  the  passage  of  that  resolution. 
There  were  only  three  nays  recorded  against 
its  passage. 

Now,  sir,  this  resolution  declares  that  these 
States  at  that  day  had  no  right  of  representa- 
tion in  Congress.  I  desire  to  ask  the  honor- 
able Senator  from  Indiana  what  constitutional 
rights,  in  his  judgment,  these  States  had  when 
he  voted  to  declare  that  they  had  no  right  of 
representation  in  Congress?  I  ask  what  con- 
stitutional rights,  in  his  judgment,  these  States 
had  when  he  voted  not  only  that  they  had  no 
right  of  representation  in  Congress,  but  that 
they  could  not  exercise  any  such  right  in 
consequence  of  their  rebellion  until  Congress 
should  pass  a  law  to  that  effect?  The  honor- 
able Senator  the  other  day  made  a  very  remark- 
able representation  in  reference,  to  the  passage 
of  this  resolution.  I  will  read  what  he  said 
upon  the  subject: 

"  It  is  my  duty  to  notice  as  I  am  passing  along,  to 
use  the  language  of  the  President,  the  reference  that 
my  colleague  made  to  a  vote  given  by  the  distin- 
guished Senator  from  Wisconsin;  and  as  I  voted  with 
the  Senator  from  Wisconsin  I  think  my  name  is  kept 
back  simply  with  a  view  of  bringing  that  up  in  judg- 
ment against  me.  Senators  will  recollect  that  my 
colleague  read  from  the  Journal  the  action  of  the 
4  Senate  on  what  was  known  as  the  Winter  Davis  bill. 
When  that  bill  came  into  this  body  Mr.  Brown,  then 
a  Senator  from  Missouri,  offered  an  amendment 
changing  it  very  much.  I  was  opposed  to  both  bills ; 
first,  to  the  House  bill,  because  I  then  held,  as  I  now 
hold,  that  the  Congress  of  the  United  States  cannot 
clotbe  the  people  of  a  State  with  the  power  to  make 
a  State  government.  That  authority  is  with  the 
people  themselves  after  the  State  has  been  once  ad- 
mittedintotheUnion.  Mr. Brown  offered  an  amend- 
ment, and  the  question  with  me  and  the  Senator  from 
Wisconsin  was  the  ordinary  question  of  deciding 
between  the  original  proposition,  which  you  are  op- 
posed to,  and  an  amendment  which  you  also  oppose. 
So  I  voted  for  the  amendment,  as  the  Senator  from 
Wisconsin  and  many  others  voted  for  it,  and  it 
carried." 

The  statement  which  the  honorable  Senator 
rnsie  is  altogether  true ;  but  he  did  not  state 
the  whole  history  of  that  proposition ;  and  I 
b(.g  to  read  to  the  Senate  what  occurred  at  the 
time  that  resolution  was  passed.  True,  when 
the  amendment  was  proposed  by  the  Senator 
from  Missouri.  Mr.  Brown,  the  honorable  Sen- 


ator from  Indiana  did  vote  for  the  amendment, 
and  the  Senate  was  about  equally  divided  upon 
its  adoption,  seventeen  voting  for  it  and  six- 
teen against  it ;  but,  sir,  after  the  amendment 
was  adopted  the  following  occurred  in  the 
Senate: 

"So  the  jrmendmcnt  was  concurred  in. 
'The  amendment  was  ordered  to  be  engrossed,  and 
the  bill  to  be  read  a  third  time.     The  bill  was  read 
the  third  time. 

"Mr.  TRr.MBrLL.  I  desire  to  have  the  yeas  and 
nays  on  the  passage  of  the  bill.  I  want  to  have  a 
distinct  vote  on  the  proposition  itself,  not  antag- 
onized with  anything  else,  and  see  what  the  sense  of 
the  Senate  is  on  the  proposition. 

"Mr.  BROWS.  We  have  just  had  it  on  the  same 
proposition. 

"Mr.  TRVMBULL.  Then  it  was  antagonized  to  the 
original  bill  as  an  amendment.  I  want  it  by  itself 
to  see  what  the  sense  of  the  Senate  is  in  reference  to 
the  measure,  and  not  as  a  substitute  for  anything 
else.  I  ask  for  the  yeas  and  nays. 

"  The  yeas  and  nays  were  ordered ;  and  being  taken , 
resulted— yeas  26,  nays  3;  as  follows: 

"TEAS— Messrs.  Brown,  Chandler,  Conness,  Doo- 
little,  Grimes,  Hale,  Harlan,  Harris,  Henderson, 
Johnson,  Lane  of  Indiana,  Lane  of  Kansas,  Mc- 
Dougall,  Morgan,  Pomeroy,  Ramsey,  Riddle,  Sher- 
man, Sprague,  Sumner,  Ten  Eyck,  Trumbull,  Van 
Winkle,  Wade,  Wilkinson,  and  Wilson— 26. 

"NATS — Messrs. Davis,  Powell,  andSaulsbury— 3." 

Mr.  HENDRICKS.  As  the  Senator  is  mak- 
ing a  statement  of  the  position  I  assumed  on 
tlfot'qucstion,  I  desire  to  call  his  attention  to 
the  fact  that  he  omits  apart  of  the  view  I  took 
the  other  day.  I  not  only  said  that  while  the 
measure  was  antagonized  by  the  amendment 
of  the  Senator  from  Missouri  (Mr.  Brown)  to 
the  bill  of  the  House,  I  had  the  right,  although 
not  in  favor  of  the  amendment,  to  vote  for  it 
as  an  antagonistic  measure  to  the  bill  that  I 
opposed,  but  also  when  the  amendment  should 
be  adopted  by  the  Senate  we  would  have  had 
a  right  strictly  to  vote  for  the  amendment  as 
agreed  to  by  the  Senate  as  still  a  measure  in 
antagonism  to  the  bill  of  the  House  ;  and  I 
will  read  what  I  said.  After  quoting  the  lan- 
guage of  the  Senator  from  Ohio  [Mr.  WADEJ 
on  that  occasion,  I  said  : 

"  That '  miserable  dodge,'  '  that  negation,'  is  what 
I  voted  for.  I  would  vote  to  dodge  any  such  bill  as 
that  which  came  from  the  House  of  Representatives, 
and  so  might  the  Senator  from  Wisconsin ;  and  when 
the  bill  was  thus  amended  it  would  have  been  proper 
for  us  to  vote  for  the  amendment  as  a  measure  an- 
tagonistic to  the  measure  from  the  House,  being 
opposed  to  the  House  bill." 

I  will  say  to  the  Senator  that  if  he  will  look 
further  into  this  record  he  will  see  that  when 
the  amendment  of  the  Senate  went  to  the 
House  of  Representatives  the  House  disagreed 
to  the  Senate  amendment,  and  then  it  cu:;:e 


6 


back  into  this  body,  and  I  voted  with  the  Sen- 
ate still.  He  will  find  my  vote  affirmatively 
to  stand  by  the  amendment  of  the  Senate  as 
opposed  to  the  House  bill,  because  I  regarded 
it  as  antagonistic 

Mr.  WILLIAMS.  When  an  amendment  is 
proposed  in  the  Senate,  it  seems  to.  me  that  a 
Senator  can  choose  between  the  proposed 
amendment  and  the  original  bill  without  com- 
mitting himself  as  to  the  question  involved  ;  but 
when  the  amendment  is  adopted  and  the  bill 
is  put  upon  its  final  passage  I  suppose  that 
the  record  of  the  yeas  exhibits  the  opinion  of 
those  who  are  in  favor  of  the  passage  of  the 
bill.  That  is  the  ordinary  construction  of  such 
a  record,  and  that  is  the  way  in  which  it  will 
be  understood  by  people  not  acquainted  with 
the  tactics  of  parliamentary  proceeding.  But, 
sir,  I  beg  to  invite  the  attention  of  the  Senate 
to  another  record  which  is  not  susceptible  of 
misconstruction.  On  the  8th  day  of  February, 
1865,  the  Congress  of  the  United  States  adopted 
the  following  resolution : 

"  Whereas  the  inhabitants  and  local  authorities  of 
the  States  of  Virginia.  North  Carolina,  South  Caro- 
lina, Georgia,  Florida,  Alabama,  Mississipi,  Louisi- 
ana, Texas,  Arkansas,  and  Tennessee  rebelled  against 
the  Government  of  the  United  States,  and  were  in 
such  condition  on  the  8th  day  of  November,  18G4, 
that  no  valid  election  for  electors  of  President  and 
Vice  President  of  the  United  States,  according  to  the 
Constitution  and  laws  thereof,  was  held  therein  on 
said  day:  Therefore, 

"Beit  resolved  by  the  Senate  and  House  of  Represent- 
atives of  the  United  States  of  America  in  Congress  as- 
sembled. That  the  States  mentioned  in  the  preamble 
to  this  joint  resolution  are  not  entitled  to  represent- 
ation in  the  Electoral  College  for  the  choice  of  Pres- 
ident and  Vice  President  of  the  United  States  for  the 
term  of  office  commencing  on  the  4th  day  of  March, 
1865;  and  no  electoral  votes  shall  be  received  or 
counted  from  said  States  concerning  the  choice  of 
President  and  Vice  President  for  said  term  pf  office." 

I  find,  by  referring  to  page  505  of  Part  I.  of 
The  Congressional  Globe  of  the  second  session 
of  the  Thirty-Eighth  Congress,  that  upon  the 
adoption  of  that  joint  resolution  the  vote  stood 
as  follows : 

"YKAS— Messrs.  Anthony,  Brown,  Buckalew, 
Chandler,  Clark,  Collamer.  Conness,  Davis,  Dixon, 
Farwell,  Foster,  Grimes,  Hale,  Harlan,  Henderson, 
Hendricks,  Howard,  Johnson,  Morgan,  Merrill,  Nye, 
Powell,  P>,amsey,  Sherman,  Trumbull,  Wade,  and 
Wright— 27. 

"NAYS — Messrs.  Cowan,  Doolittle,  Harris,  Howe, 
Lane  of  Kansas,  Nesmith,  Saulsbury,  Ten  Eyck,  Van 
Winkle,  and  Willey— 10." 

On  the  8th  day  of  February,  1865,  near  the 
termination  of  hostilities  in  this  country,  the 
honorable  S&nator  from  Indiana  and  the  hon- 
orable Senator  from  Pennsylvania  both  voted 
that  those  States  had  no  right  of  representation 


in  the  Electoral  College.  Now,  I  ask  the  hon- 
orable Senator  from  Indiana  what  constitu- 
tional rights  in  his  judgment  those  States  had 
when  he  voted  that  they  were  not  entitled 
under  the  Constitution  to  any  representation 
in  the  Electoral  College?  Sir,  does  not  the 
Constitution  in  express  terms  confer  the  right 
upon  every  State  to  vote  for  President  and 
Vice  President  of  the  United  States?  If  in 
consequence  of  this  rebellion  those  States  for- 
feited that  right,  I  will  ask  if  they  did  not 
necessarily  forfeit  other  express  and  implied 
rights  under  the  Constitution? 

The  honorable  Senator  from  Indiana  the 
other  day,  in  commenting  upon  the  speech  of 
his  colleague,  [Mr.  MORTON,]  inquired,  refer- 
ring to  what  he  had  said  upon  the  education 
of  the  people,  how  can  the  people  of  the 
country  be  educated  upon  a  constitutional  ques- 
tion? What  is  constitutional,  said  he,  at  one 
time  is  constitutional  at  another ;  what  was 
constitutional  last  year  is  constitutional  at  this 
time.  Now,  sir,  as  a  legal  proposition,  these 
States  either  had  or  had  not  a  right  to  repre- 
sentation in  the  Electoral  College.  If  they  had 
that  right  under  the  Constitution  then  that 
vote  was  unconstitutional ;  but  if  they  had  not 
that  right,  then  they  had  forfeited  it  by  rebel- 
lion, and  the  Republican  party  is  only  claim- 
ing that  to  be  constitutional  now  as  to  those 
Stales  which  the  Senator  in  the  most  solemn 
manner  affirmed  was  constitutional  in  1865. 

Mr.  BUCKALEW.  I  should  like  to  say  a 
word  on  this  point,  with  the  Senator's  permis- 
sion. 

Mr.  WILLIAMS.     Certainly. 

Mr.  BUCKALEW.  The  resolution  to  which 
the  Senator  refers  was  passed  as  a  declaratory 
act.  It  was  intended  to  give  direction  to  the 
proceedings  of  the  two  Houses  of  Congress 
when  convened  in  joint  convention  for  the 
purpose  of  counting  the  votes  for  President 
and  Vice  President  of  the  United  States.  I 
and  others  voted  for  that  resolution  with  the 
design  of  preserving  the  order  of  that  assem- 
bly, establishing  beforehand  the  opinion  which 
ought  to  prevail  in  that  body  when  it  came  to 
perform  its  appropriate  duty.  I  voted  for  what 
that  measure  declared,  namely,  thatat  that  time 
the  States  in  question  were  in  such  condition 
that  electoral  votes  for  President  and  Vice 
President  from  them  ought  not  to  be  counted 
and  received  in  order  to  influence  the  result 
of  the  presidential  election  ;  and  that  was  all. 
The  measure  itself  did  not  express  any  opin- 
ion upon  the  abstract  right  of  the  States ;  it 
simply  expressed  an  opinion  upon  the  fact 
which  existed  at  that  time.  If  the  Senator 
will  go  back  to  that  debate  he  will  find  me 
reason  which  influenced  me  and  others.  It 
was  that  we  were  indisposed  to  count  the  elect- 
oral votes  from  those  imperfect  State  organ- 
izations set  up  by  Mr.  Lincoln  in  Louisiana, 
in  Arkansas,  and  in  Tenuessee.  One  was 


attempted  also  in  Virginia,  and  there  was  an 
immature  attempt  in  Florida.  I  was  opposed 
throughout  to  the  counting  of  the  electoral 
votes  that  were  taken  under  the  authority  of 
governments  which  I  think,  so  far  as  this  ques- 
tion was  concerned,  were  bogus.  That  was  all. 
There  was  no  expression  of  opinion  at  that  time 
aa  to  the  right  of  a  State  to  participate  in  the 
proceedings  of  the  Federal  Government,  but 
simply  a  declaration  of  opinion  that  under  the 
circumstances  which  then  existed  electoral 
votes  from  those  States  could  not  be  received. 

Mr.  MORTON.  With  the  permission  of  the 
Senator  from  Oregon  I  should  like  to  make 
one  suggestion  to  the  Senator  from  Pennsyl- 
vania. That  resolution  contained  a  distinct 
recognition  that  at  that  time  those  States  were 
not  entitled  to  representation  in  Congress ;  and 
it  would  have  been  well  for  the  Senator  to 
show  at  what  time  since,  by  what  act  since, 
thev  have  come  into  possession  of  that  right. 

Mr.  BUCKALEW.  The  Senator  simply 
restates  the  very  point  which  I  intended  to 
explain  ;  and  that  was  that  the  resolution  did 
not  declare  an  unqualified  absence  of  right  in 
those  States,  but  that  under  the  circumstances 
which  then  existed  they  should  not  exercise  it. 

Mr.  WILLIAMS.  Mr.  President,  I  am  not 
concerned  with  the  reasons  which  influence 
Senators  when  they  vote  upon  a  proposition 
to  interpret  or  construe  the  Constitution  of 
the  United  States.  I  shall  proceed  in  due 
time  to  apply  the  argument  which  I  derive 
from  the  adoption  of  this  resolution  to  the 
position  which  those  honorable  Senators  have 
taken  that  the  State  governments  of  the  rebel 
States  continued  to  exist  during  the  war,  that 
their  constitutions  and  laws  were  unaffected  by 
the  rebellion,  and  that  they  were  and  have 
been  ail  the  time  perfect  States  in  the  Union. 
Does  not  the  Senator  say  that  the  right  of  a 
State  to  representation  does  not  depend  upon 
the  Constitution,  but  a  certain  state  of  facts, 
the  political  or  social  condition  of  the  State  ? 
Now,  sir,  in  my  judgment  the  condition  of  the 
rebel  States  at  this  time  is  such  as  not  to 
entitle  them  to  representation  in  Congress, 
"  but  does  that  satisfy  the  honorable  Senator 
from  Pennsylvania  ?  Does  he  not  maintain 
that  by  such  a  vote  I  violate  the  Constitution 
because  I  have  no  right  so  to  decide  upon  the 
facts?  When  I  show  a  record  here  which 
proves  that  he  asserted  the  jurisdictional  power 
of  Congress  to  exclude  the  rebel  States  from 
representation,  and  show,  too,  that  he  voted 
two  or  three  years  ago  to  exercise  that  power 
aa  to  the  electoral  votes  of  those  States,  he 
undertakes  to  evade  the  force  of  this  record 
.  by  giving  his  peculiar  reasons  for  the  vote 
which  he  gave.  Now,  sir,  I  am  willing  to  let 
that  record  stand  and  speak  for  itself.  I  say 
that  these  States,  if  they  had  a  constitutional 
right  to  representation,  could  not  be  deprived 
of  that  right  by  any  resolution  of  Congress, 


and  if  they  had  no  such  constitutional  right 
it  was  because  they  had  been  in  rebellion  against 
the  Federal  Government,  and  so  had  lost  it : 
and  from  the  vote  of  the  two  Senators  the  latter 
must  have  been  their  position,  a  position  which 
they  now  say  is  a  clear  violation  of  the  Con- 
stitution, but  which  the  Union  men  of  this 
country  now  as  then  consistently  occupy. 

Congress  at  various  times  enacted  laws  de- 
claring the  revolted  States  in  a  state  of  insur- 
rection against  the  Federal  Government.  Con- 
gress unquestionably  has  jurisdiction  over  that 
question,  for  it  is  expressly  conferred  by  the 
Constitution  of  the  United  States :  and  when 
Congress  declared  by  a  law,  which  has  not 
since  been  modified  or  repealed,  that  these 
States  were  in  a  state  of  insurrection,  I  will 
ask  if  the  legal  status  of  those  States  is  not 
defined ;  and  has  the  President  or  any  court 
power  to  change  such  legal  status  contrary  to 
an  existing  law  of  Congress?  Suppose  the 
President  should  be  of  opinion  that  those 
States  were  not  in  insurrection  when  they  were 
declared  so  to  be  by  a  law  of  Congress ;  is  his 
opinion  of  any  more  consequence  upon  the 
subject  than  the  opinion  of  a  private  citizen? 
Suppose  the  Supreme  Court  should  differ  with 
Congress  upon  the  question  of  fact  as  to 
whether  these  States  were  or  were  not  in  in- 
surrection ;  has  the  Supreme  Court  a  right  to 
say  that  Congress  was  mistaken  as  to  the  faet, 
and,  therefore,  the  law  was  invalid  and  with- 
out any  effect?  Congress  has  decided  that 
these  States  were  in  insurrection,  and  has 
never  modified  or  reversed  that  decision  ex- 
cept as  to  the  State  of  Tennessee  when  her 
Senators  and  Representatives  were  admitted 
to  Congress ;  and  I  affirm  that  the  legal  status 
of  those  States,  from  the  day  these  laws  were 
enacted  up  to  this  time,  is  fixed  by  law,  and 
neither  President  nor  court  has  the  right  to 
say  that  the  condition  of  those  States  is  other- 
wise than  it  is  declared  to  be  by  the  law  of  the 
land. 

Sir,  if  this  position  be  correct,  and  Congress 
upon  declaring  these  States  in  insurrection  had 
a  right  to  proceed  and  adopt  measures  for  the 
suppression  of  the  rebellion,  then  I  say  that 
Congress  has  a  right  to  continue  the  exercise 
of  this  power,  until  in  its  own  good  judgment 
the  peace  and  safety  of  this  country  demand 
or  permit  a  change  of  that  declaration,  and  a 
change  in  the  legal  status  of  the  rebel  States. 

I  justify,  therefore,  upon  this  ground,  the 
legislation  of  Congress  which  commenced  as 
soon  as  the  rebellion  broke  out  and  has  been 
continued  down  to  this  day.  Sir,  it  does  not 
follow  that  because  the  organized  armies  of 
the  confederacy  have  been  overcome  and  dis- 
persed that  the  insurrection  is  ended,  because 
there  may  be  such  a  combination  of  individ- 
uals in  those  States,  there  may  be  such  a  dis- 
position to  disorder,  violence,  and  crime,  to 
disobedience  of  law  and  disregard  of  public 


8 


authority,  as  to  make  it  just  as  necessary  now 
for  the  future  peace  of  the  country  to  hold  that 
the  insurrection  continues  as  it  was  necessary  to 
hold  that  it  existed  when  Lee  was  in  the  field 
at  the  head  of  his  array. 

I  submit,  sir,  that  I  have  proved  that,  in  the 
judgment  of  the  legislative  department  of  the 
country,  the  rebel  States,  in  consequence  of  the 
rebellion,  have  forfeited  their  constitutional 
rights.  Now,  sir,  what  is  the  opinion  of  the 
judicial  department  upon  that  subject.  In  the 
case  of  the  Brilliante,  to  which  I  have  before 
referred,  the  Supreme  Court  say : 

"When  the  party  in  rebellion  occupy  and  hold  in 
a  hostile  manner  a  certain  portion  of  territory;  have 
declared  their  independence;  have  cast  off  their  alle- 
giance; have  organized  armies;  have  commenced 
hostilities  against  their  former  sovereign,  tho  world 
acknowledges  them  as  belligerents." 

I  call  attention  to  this— 

"The  world  acknowledges  them  as  belligerents  and 
the  contest  a  war."— 2  Black,  pages  660-667. 

Again,  the  court  say — 

"All  persons  residing  within  this  territory  whose 
property  may  be  used  to  increase  tho  revenues  of  the 
hostile  power  are,  in  this  contest,  liable  to  be  treated 
as  enemies,  though  not  foreigners.  They  have  cast 
off  their  allegiance  and  made  war  on  their  Govern- 
ment, and  are  none  the  less  enemies  because  they  are 
traitors." — Ibid.,  page  674. 

Now,  sir,  I  ask  the  honorable  Senator  from 
Pennsylvania  or  the  honorable  Senator  from 
Indiana'what  constitutional  rights  had  the  peo- 
ple of  these  States  when  they  were  held  to  be 
public  enemies  of  the  nation;  when  it  was  sol- 
emnly adjudicated  by  the  Supreme  Court  that 
any  person  within  the  insurrectionary  region, 
no  matter  what  might  be  his  personal  views  or 
inclinations,  was  liable  to  be  treated  as  an  enemy 
of  the  Government,  that  his  property  was  sub- 
ject to  seizure  and  confiscation  without  trial  by 
judge  or  jury?  Talk  about  the  constitutional 
rights  of  the  enemies  of  the  country! 

More  than  this,  the  Supreme  Court  decided 
that  the  parties  to  the  war,  notwithstanding  it 
is  usually  called  a  civil  war,  were  belligerents. 
I  think  that  many  men  fall  into  a  mistake  in 
considering  this  question,  because  they  only 
look  at  these  people  as  traitors  and  do  not 
regard  them  as  belligerents.  The  United  States 
of  America  in  this  war  occupied  one  ground, 
maintained  one  side  of  the  struggle.  The  so- 
called  confederate  States  of  America  occupied 
the  other  ground  and  maintained  the  struggle 
on  the  other  side,  and  they  were  pronounced 
by  the  Supreme  Court  as  belligerent  Powers 
and  were  so  recognized  in  Europe.  If  they 
were  belligerent  Powers,  what  were  the  rights 
of  the  belligerent  party  which  triumphed  in  the 
struggle?  Is  there  any  doubt  upon  any  law 
applicable  to  the  case,  that  when  one  belligerent 
party  conquers  the  other,  there  is  no  limitation 


whatever  upon  the  power  of  the  conqueror  but 
those  laws  of  humanity  and  moderation  that 
govern  all  civilized  and  Christian  nations? 

Take  the  decision  of  the  Supreme  Court  as 
authority,  and  it  isdemonstrably  clear  that  the 
United  States,  when  they  succeeded  in  this 
struggle,  had  an  unlimited  right  to  dictate  the 
terms  upon  which  peace  should  be  made,  with- 
out any  restrictions  by  the  Constitution  or  law 
of  any  country.  No  one  will  question  that  the 
executive  department  of  the  Government  was 
in  harmony  with  the  legislative  and  judiciary 
upon  this  question.  That  was  indicated  in  the 
numerous  proclamations  of  the  President,  and 
particularly  in  his  proclamation  of  emancipa- 
tion. Slavery  was  protected  in  the  southern 
States  before  the  rebellion  by  the  Constitution, 
but  in  consequence  of  the  revolt  of  the  slave- 
holding  States  against  the  Government  their 
constitutional  right  to  slaves  surceased  and  the 
sovereign  right  of  the  nation  was  interposed  to 
take  and  destroy  the  property  of  its  enemies 
as  the  exigencies  of  its  threatened  and  im- 
periled existence  might  demand.  When  Lee 
surrendered  to  Grant  did  not  both  parties 
recogni/.e  the  absolute  right  of  the  commander 
of  the  victorious  army  to  dictate  terms  of 
peace?  Did  Lee  pretend  that  he  or  his  men 
or  the  rebel  States  had  any  constitutional  rights 
to  be  considered  in  that  adjustment?  When 
the  arrangement  was  made  between  Sherman 
and  Johnston,  in  which  there  was  some  sort 
of  recognition  of  right  in  the  rebel  States,  that 
arrangement  was  promptly  repudiated  by  the 
Administration,  and  it  was  held  that  no  rights 
of  rebel  States  or  rebels  were  to  be  recognized 
at  all,  but  they  were  to  be  regarded  as  wholly 
dependent  on  the  clemency  and  kindness  of 
the  victors. 

I  have,  therefore,  Mr.  President,  I  think, 
proved  beyond  all  controversy  that  in  the 
judgment  of  the  executive,  legislative,  and 
judicial  departments  of  the  Government  the 
effect  of  the  rebellion  was  to  deprive  these 
States  of  their  constitutitional  rights.  I  care 
not  what  phraseology  you  may  employ.  One 
form  of  expression  seems  to  suit  one  class  of 
persons,  another  form  another  class ;  but  the 
solid,  immovable  fact  is,  as  was  once  agreed 
to  by  all  Departments  of  the  Government 
and  all  loyal  people,  that  the  rebellion  had 
deprived  the  States  rebelling  of  their  constitu- 
tional rights.  \. 

When  the  winter  was  over  and  the  spring 
time  of  1865  came,  with  its  birds  and  its  flow- 
ers, there  was  a  change  in  our  national  affairs. 
God  in  his  goodness  gave  us  the  victory,  and 
our  brave  soldiers  returned  to  receive  the  con- 
gratulations of  a  grateful  country,  and  the  rebel 
soldiery  dispersed  to  their  unhappy  homes ;  and 
the  noisy,  smoky  field  of  battle  gave  place  to 
the  silent  bivouac  of  the  dead.  The  war  had 
accomplished  its  purpose.  The  rebel  State 
governments  had  been  overthrown  and  re- 


9 


moved,  and  now  the  duty  of  the  civil  authori- 
ties arose.  Now  it  became  the  duty  of  the 
civil  authorities  to  replace  the  rebel  govern- 
ments by  others  that  were  loyal  to  the  Consti- 
tution and  the  Union.  When  organized  hos- 
tilities ceased  everywhere  in  the  insurrec- 
tionary districts  there  was  a  political  void. 
Like  the  world  in  the  beginning,  that  whole 
countiy  was  without  form  and  void.  This 
may  be  proved  by  a  very  brief  argument. 

Rebel  State  governments  supplanted  those 
loyal  governments  that  existed  before  the  break- 
ing out  of  the  war,  and  then  these  rebel  State 
governments  in  turn  were  overthrown  and  de- 
stroyed by  the  armies  of  the  United  States,  and 
so  there  were  no  governments  in  that  region. 
If  two  and  two  make  four  that  argument  proves 
that  Andrew  Johnson  was  correct,  and  Con- 
gress, too,  in  concurring  with  him,  that  the 
rebellion  destroyed  all  civil  government  in  the 
rebel  States.  All  the  Departments  of  the  Gov- 
ernment, so  far  as  I  know,  acquiesced  in  that 
position.  President  Johnson  in  his  proclama- 
tion appointing  a  provisional  Governor  for  the 
State  of  North  Carolina  uses  this  language: 

"And  whereas  the  rebellion  which  has  been  waged 
by  a  portion  of  the  people  of  the  United  States  against 
the  properly-constituted  authorities  of  the  Govern- 
ment thereof,  in  the  most  violent  and  revolting  form, 
but  whose  organized  and  revolting  forces  have  now 
been  almost  entirely  overcome,  has  in  its  revolution- 
ary progress  deprived  the  people  of  the  State  of  North 
Carolina  of  all  civil  government." 

.  That  was  the  position  assumed  by  President 
Johnson,  and  Congress  occupied  at  that  time 
and  now  occupies  the  same  position.  To  stop 
all  controversy  upon  this  point,  it  may  be 
proper  to  say  that  the  honorable  Senator  from 
Indiana  [Mr.  HENDRICKS]  in  his  speech  the 
other  day  indorsed  the  proceedings  of  Presi- 
dent Johnson  from  the  beginning  to  the  end, 
and  therefore  indorsed  the  position  which  he 
then  took,  that  the  rebellion  had  deprived 
these  States  of  all  civil  government ;  and  the 
Democratic  conventions  which  have  lately  been 
held  in  the  States  of  Indiana,  Ohio,  and 
Connecticut  all  concur  in  indorsing  and  eulo- 
gizing the  policy  of  Andrew  Johnson.  That 
policy  could  not  exist  unless  it  proceeded  upon 
the  ground  that  the  rebellion  had  destroyed  all 
civil  government  in  the  South,  and  the  Demo- 
cratic party,  if  they  have  made  any  record  as 
to  any  question,  have  made  a  record  that 
irrevocably  commits  them  to  that  position. 

I  assume  then,  Mr.  President,  to  start  with 
the  argument,  that  all  departments  of  the  Gov- 
ernment and  all  political  parties  in  this  nation 
are  committed  to  the  doctrine  that  the  rebel- 
lion destroyed  all  civil  government  in  the  rebel 
States.  I  inquire  now  whose  prerogative  was 
it  under  the  Constitution  to  inaugurate  civil 
government  in  these  States?  President  John- 
son and  his  supporters  claim  that  it  was  the 


exclusive  right  of  the  Executive  of  the  United 
States  to  organize  civil  governments  in  those 
insurrectionary  States,  and  that  Congress  had 
no  right  to  say  or  do  anything  in  reference  to 
the  matter.  Congress,  on  the  other  hand,  cfaims 
that  by  the  Constitution  the  power  to  organize 
governments  is  in  its  nature  a  legislative  act, 
and  therefore' belongs  to  Congress.  This  is  the 
issue  between  the  executive^and  the  legisla- 
tive departments  of  the  nation,  and  out  of  that 
issue  has  grown  this  great  controversy,  with  all 
its  unhappy  consequences/  Lat  us  look  for  one 
moment  to  the  position  which  iPresident  John- 
son and  his  supporters  occupy  as  to  the  con- 
stitutional rights  of  the  rebel  States. 

President  Johnson  appointed  a  provisional 
governor  for  the  State  of  North  Carolina. 
Could  President  Johnson  appoint  a  provisional 
governor  for  the  State  of  New  Jersey?  Will 
anybody  pretend  that  he  could?  If  not,  why 
not?  Clearly  because  the  State  of  New  Jersey 
has  the  constitutional  right  to  regulate  its  own 
affairs,  while  that  right  as  to  North  Carolina 
had  been  lost  by  the  rebellion.  President 
Johnson  orders  a  convention  to  make  a  con- 
stitution or  to  alter  and  amend  the  existing 
constitution  in  the  State  of  North  Carolina. 
Could  he  order  a  convention  in  the  State  of 
New  Jersey  ?  Will  anybody  pretend  that  he  has 
any  such  power?  If  not,  why  not?  Because 
New  Jersey  has  her  constitutional  rights  and 
North  Carolina  has  none,  President  Johnson 
deSned  the  eligibility  of  members  to  the  con- 
vention and  regulated  the  elective  franchise  in 
the  State  of  North  Carolina.  Can  President 
Johnson  issue  a  proclamation  and  say  who 
shall  be  eligible  to  a  convention  in  the  State 
of  New  Jersey,  or  who  shall  exercise  the  elec- 
tive franchise  in  that  State?  Nobody  will  pre- 
tend that  he  has  any  such  power.  The  differ- 
ence certainly  grows  out  of  something;  and  it 
cannot  grow  out  of  any  other  fact  than  that  the 
constitutional  rights  of  New  Jersey  in  this 
Union  have  remained  unimpaired,  and  the  con- 
stitutional rights  of  North  Carolina  have  been 
paralyzed  or  destroyed  by  the  rebellion. 

President  Johnson  dictated  what  they  should 
put  into  their  constitutions,  and  he  declared 
that  he  would  not  consent  to  recognize  the  rebel 
States  unless  they  made  constitutions  to  suit 
his  wishes.  Recognize  the  State  1  What  did 
Johnson  mean  when  he  said  he  would  not  rec- 
ognize the  State  ?  Did  he  mean  to  say  that  the 
States  were  out  of  the  Union,  and  that  he  would 
not  recognize  them  as  in  the  Union  until  they 
made  a  constitution  in  conformity  with  his  dic- 
tation ?  Did  he  mean  to  say  that  he  would  not 
recognize  their  right  to  representation  in  Con- 
gress until  they  made  such  a  constitution  as 
should  suit  him?  What  did  he  mean  ?  Those 
who  support  Johnson  in  his  policy  denounce 
Congress  because  it  refuses  to  recognize  these 
States  unless  they  adopt  the  terms  and  condi- 
tions prescribed  by  law,  and  at  the  same  time 


10 


they  approve  of  Johnson's  policy  in  which  he 
declared  that  he  would  not  recognize  these 
States  unless  they  acted  in  accordance  with  his 
individual  wishes ! 

This  exercise  of  extraordinary  power,  legis- 
lative, judicial,  and  executive,  by  the  Presi- 
dent, has  been  affirmed  and  reaffirmed  by  Dem- 
ocratic presses,  speakers,  and  conventions,  and 
the  Ajax  and  Achilles  of  the  Democratic  party 
in  the  Senate  advocate  and  support  his  policy. 
Let  it  be  remembered,  sir,  and  recorded  that 
the  Democratic  party  has  affirmed  the  right  of 
Andrew  Johnson  to  set  up  and  put  in  opera- 
tion State  governments  in  ten  States  of  this 
Union,  independent  of  the  power  or  control 
of  Congress,  and  they  must  proceed  upon  the 
ground  that  these  States  had  no  constitutional 
right  to  make  their  own  governments,  unless 
they  claim  that  Johnson  in  every  one  of  the 
thirty-seven  States  can  make  a  constitution  and 
establish  a  government  irrespective  of  the  will 
of  Congress  or  of  the  wishes  of  the  people. 

•President  Johnson  in  his  proclamations  dis- 
franchised hundreds  of  thousands  of  men,  and 
the  honorable  Senators  acquiesce  in  and  ap- 
prove of  that  policy ;  but  Congress,  on  the 
other  hand,  enfranchises  hundreds  of  thou- 
sands of  men,  and  it  is  claimed  that  it  is 
usurpation  for  the  legislative  department  of 
the  country  to  extend  the  elective  franchise 
while  it  is  perfectly  proper  for  the  executive 
department  to  disfranchise  by  one  fiat  hun- 
dreds of  thousands  of  American  citizens. 

Sir,  there  never  was  a  proposition  more 
unfounded  in  law  than  that  the  power  which 
Johnson  has  exercised  as  to  the  rebel  States 
constitutionally  belongs  to  the  executive  de- 
partment of  the  Government.  The  Executive 
was  created  to  execute  and  not  to  make  law. 
Johnson  has  no  power  to  make  or  unmake  a 
statute ;  and  the  sheriff  of  a  court  might  as 
well  undertake  to  reverse  the  judgment  of  the 
tribunal  of  which  he  is  a  ministerial  officer  as 
for  Andrew  Johnson,  as  President,  to  under- 
take to  exercise  this  extraordinary  and  purely 
legislative  authority. 

Let  us  look  at  this  subject  in  the  light  of 
other  provisions  of  the  Constitution.  Take, 
for  instance,  the  admission  of  Territories  into 
the  Union  as  new  States.  When  the  people 
of  a  Territory  form  a  constitution,  that  consti- 
tution is  submitted  to  Congress,  and  Congress 
approves  it  and  admits  the  State,  or  Congress 
rejects  the  constitution  and  the  State  is  not 
made.  Congress  has  the  exclusive  jurisdic- 
tion over  that  question,  and  the  President  has 
nothing  more  to  do  with  it  than  a  private  cit- 
izen. 

I  beg  here  to  notice  the  argument  that  was 
made  by  the  Senator  from  Indiana,  and  I  think 
the  same  course  of  reasoning  was  pursued  by 
the  Senator  from  Pennsylvania,  that  Congress 
has  no  power  over  a  State  constitution,  and  that 
the  jurisdiction  of  the  people  of  the  State  is 


absolute  and  exclusive  on  that  question  even 
in  the  admission  of  Territories  as  States.  For 
what  purpose  is  the  constitution  of  a  State 
seeking  admission  submitted  to  Congress  if 
not  for  its  approval  or  rejection  ?  Is  Congress 
to  exercise  no  judgment  over  the  provisions  of 
a  constitution  submitted  to  it  to  determine 
whether  its  features  are  or  are  not  objectiona- 
ble, whether  its  provisions  are  or  are  not  ac- 
ceptable? Suppose  the  people  of  the  Terri- 
tory of  Utah  should  form  a  State  constitution 
making  polygamy  in  that  State  lawful  and  con- 
stitutional, and  should  submit  that  constitution 
to  the  Senate,  would  the  Senator  from  Penn- 
sylvania vote  to  admit  Utah  with  polygamy 
established  in  her  constitution,  upon  the  prin- 
ciple that  the  people  of  a  Territory  have  an 
absolute  right  to  form  their  own  constitution? 

I  cannot  imagine  for  what  purpose  new 
States  submit  their  constitutions  to  Congress, 
unless  it  is  for  the  purpose  of  examination; 
and  if  a  provision  is  found  to  be  objectionable, 
has  not  Congress  a  right  to  say  that  it  will  not 
approve  that  provision,  but  that  when  the  peo- 
ple of  the  Territory  remove  it  the  constitution 
will  be  approved? 

If  you  look  at  the  other  provisions  of  the 
Constitution  it  will  appear  that  whatever  con- 
trol there  is  in  the  Federal  Government  over  a 
State  is  vested  in  Congress.  Take,  if  you 
please,  section  ten  of  article  one.  According 
to  that  section  any  State  may  lay  any  imposts 
or  duties  on  imports  or  exports  with  the  con- 
sent and  not  without  the  consent  of  Congress. 
Any  State  may  lay  any  duty  of  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  with 
but  not  without  the  consent  of  Congress.  Any 
State  may  enter  into  an  agreement  or  compact 
with  another  State  or  with  a  foreign  Power,  or 
engage  in  war,  with  but  not  without  the  con- 
sent of  Congress. 

I  do  not  claim  that  these  provisions  show  that 
Congress  has  the  constitutional  right  to  legis- 
late for  these  rebel  States ;  but  I  argue  from 
all  the  analogies  of  the  Constitution  that  what- 
ever control  the  Federal  Government  has  over 
any  State  or  Territory  is  vested  in  Congress. 

To  make  this  position  wholly  impregnable, 
I  beg  leave  to  refer  to  the  decision  of  the 
Supreme  Court  in  the  celebrated  case  of  Lu- 
ther vs.  Bordeu,  (7  Howard,  page  1.)  I  wish 
to  ask  the  honorable  Senator  from  Indiana 
what  impression  he  intended  to  convey  to  the 
country  about  that  decision  when  he  used  this 
language : 

"  Mr.  President,  frequent  reference  has  been  made 
to  the  caso  of  Luther  vs.  Borden,  in  7  Howard,  an 
important  case  decided  by  the  Supreme  Court  of  the 
United  States,  and  my  colleague  felt  himself  justi- 
fied, instead  of  stating  what  was  the  force  and  mean- 
ing of  the  decision,  in  reading  the  dictum  of  one  of 
the  judges." 

One  would  suppose  that  some  judge  in  deliv- 


11 


cring  an  individual  or  dissenting  opinion  had 
said  what  was  cited  by  the  Senator  from  Indi- 
ana, [Mr.  MORTON*,]  when,  in  point  of  fact, 
what  he  read  was  the  deliberate  judgment  of 
eight  judges,  delivered  by  Chief  Justice  Taney, 
Justice  Woodbury  alone  dissenting,  and  it  was 
upon  the  identical  question  involved  in  that 
case  as  to  the  right  of  the  Federal  Government 
to  interfere  in  the  affairs  of  a  State. 

Mr.  CONKLING.  Will  the  Senator  allow 
me  just  here  to  remark  that  Mr.  Justice  Wood- 
bury  in  dissenting  said  expressly  that  the  only 
point  upon  which  he  dissented  was  a  question 
with  regard  to  martial  law,  which  did  not  touch 
the  point  the  Senator  is  discussing  at  all,  so 
that  the  decision  in  that  respect  was  the  unan- 
imous judgment  of  the  court. 

Mr.  WILLIAMS.  I  am  much  obliged  to  the 
Senator ;  I  believe  that  is  entirely  a  correct  view 
of  the  dissenting  opinion.  Now,  I  wish  to  read 
what  the  Supreme  Court  said  upon  this  ques- 
tion. It  would  be  regarded  as  a  little  disre- 
spectful for  Republicans  or  Radicals  to  assail  a 
decision  of  the  Supreme  Court  in  that  sort  of 
way,  to  characterize  the  deliberate  opinion  of 
the  court  as  a  dictum  of  one  of  the  judges. 
That  is  as  bad  as  anything  that  was  ever  said 
by  the  Republicans  about  the  Dred  Scott  de- 
cision. Chief  Justice  Taney — and  he  ought  to 
be  good  authority  with  Senators  on  the  other 
side  upon  constitutional  questions — said,  in 

gving  the  opinion  of  the  court  in  Luther  vs. 
orden : 

"The  fourth  section  of  the  fourth  article  of  the 
Constitution  of  the  United  States  provides  that  the 
United  States  shall  guaranty  to  every  State  in  the 
Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion:  and  on  the 
application  of  the  Legislature  or  of  the  executive 
(when  the  Legislature  cannot  be  convened)  against 
domestic  violence. 

"  Under  this  article  of  the  Constitution  it  rests  with 
Congress  to  decide  what  government  is  the  established 
one  in  a  State.  For  as  the  United  States  guaranty 
to  each  State  a  republican  government,  Congress  must 
necessarily  decide  which  government  is  established 
in  the  State  before  it  can  determine  whether  it  is 
republican  or  not.  And  when  the  Senators  and  Rep- 
resentatives of  a  State  are  admitted  into  the  coun- 
cils of  the  Union,  the  authority  of  the  government 
under  which  they  are  appointed,  as  well  as  its  repub- 
lican character,  is  recognized  by  the  proper  consti- 
tutional authority.  And  its  decision  is  binding  on 
every  other  department  of  the  Government,  and 
could  not  be  questioned  in  a  judicial  tribunal." 

In  that  decision  the  jurisdiction  of  Congress 
over  this  question  as  to  whether  a  State  has  or 
has  not  a  republican  form  of  government  is 
recognized  ;  and  it  is  also  decided  that  when 
Congress  pronounces  its  judgment  upon  that- 
question  Presidents  and  courts,  all  tribunals 
and  every  private  citizen  in  the  land,  are  con- 
cluded. 


I  think,  therefore.  Mr.  President,  that  the 
arguments  which  I  have  adduced  and  the 
authorities  which  I  have  cited  show,  or  ought 
to  show,  to  every  reasonable  man  that  the 
exclusive  control  of  this  reconstruction  ques- 
tion is  in  the  hands  of  Congress.  If  this  be 
so,  the  next  inquiry  is,  how  does  Congress 
derive  the  power,  under  the  Constitution  to 
enact  the  laws  now  in  question  ?  I  have  already 
indicated  the  ground  which  I  occupy,  that  the 
legal  status  of  these  States  once  denned  by 
Congress  continues  until  Congress  in  its  judg- 
ment shall  otherwise  declare  ;  and  I  maintain 
that  Congress  has  to-day  as  much  constitu- 
tional right  to  enact  a  reconstruction  .law  as  it 
had  to  enact  a  law  to  provide  for  raising  and 
supplying  armies  in  order  to  put  down  the 
rebellion.  The  power  may  be  derived,  too, 
under  the  guarantee  clause  of  the  Constitution, 
and  I  desire  to  invite  the  attention  of  the  Sen- 
ate and  particularly  of  the  Senator  from  In- 
diana [Mr.  HEXDRICKS]  to  what  I  have  to  say 
about  his  argument  upon  that  question.  Among 
the  first  things  uttered  by  that  Senator  in  his 
argument  was  this : 

"First,  I  deny  that  at  the  close  of  the  war  there 
were  no  State  governments  in  the  southern  States." 

That  declaration  does  not  consist  very  well 
with  his  vbte  that  these  States  had  no  right  of 
representation  in  the  Electoral  College.  If 
they  had  State  governments,  why  had  they 
not  a  right  to  choose  electors  of  President  and 
Vice  President  and  have  them  vote  in  the 
Electoral  'College?  He  further  says  : 

"I  maintain  that  during  all  the  years  of  the  rebel- 
lion every  single  act  of  a  southern  State  intended  to 
promote  the  cause  of  the  rebellion  was  void ;  that  it 
had  no  effect  to  destroy  State  institutions." 

******* 

"Practically  the  relations  were  disturbed;  prac- 
tically the  State  was  not  in  harmony  with  the  Fed- 
eral Government;  but  its  existence  as  a  State,  its 
organization  as  a  State,  its  constitution,  which  was 
the  bond  of  its  organization,  continued  all  the  way 
through  the  war;  and  when  peace  came  it  found  the 
State  with  its  constitution  and  laws  unrcpcaled  and 
in  full  force,  holding  that  State  to  the  Federal 
Union,  except  all  laws  enacted  in  aid  of  the  rebel- 
lion." 

Now,  the  Senator  from  Indiana  affirms  that 
the  State  organization  .of  each  of  these  rebel 
States  was  perfect  throughout  the  war,  that 
each  of  them  had  a  State  government,  that  its 
constitution  and  laws  were  unaffected  by  the 
rebellion,  and  yet  he  deliberately  voted  to 
deny  to  those  States,  perfect  States  in  the 
Union,  any  right  of  representation  in  the 
Electoral  College.  It  was  necessary  for  the 
Senator  from  Indiana  to  take  that  position  in 
order  to  assail  the  reconstruction  acts  of  Con- 
gress. All  the  effect  which  he  intends  to  give 
to  that  part  of  his  argument  is  that  no.case  has 
arisen  in  the  rebel  States  where  it  is  necessary 


12 


to  execute  the  guarantee  clause  of  the  Consti- 
tution, and  therefore  the  legislation  of  Con- 
gress is  unnecessary  and  unconstitutional.  Con- 
gress, he  says  in  effect,  is  claiming  to  guaranty 
by  the  reconstruction  acts  State  governments 
to  States  that  had  perfect  State  organizations, 
constitutions,  and  laws  at  the  time  they  were 
enacted.  When  it  becomes  necessary  for  the 
honorable  Senator  from  Indiana  to  advocate 
the  policy  of  Johnson,  as  it  is  the  duty  of  every 
good  Democrat  to  do,  he  changes  his  base  of 
operations,  and  then  it  is  essential,  in  order  to 
justify  the  policy  of  the  President,  to  assume 
that  a  case  has  arisen  in  the  rebel  States 
where  it  is  necessary  to  execute  the  guarantee 
clause  of  the  Constitution,  and  that  the  Presi- 
dent of  the  United  States  is  the  only  depart- 
ment of  the  Government  that  can  do  it.  He 
says  further : 

"Then,  Mr.  President,  I  assume  that  the  power 
and  duty  of  guarantying  to  the  States  republican 
forms  of  government  is  with  and  rests  upon  the  Exec- 
utive in  any  and  every  case  where  the  Executive  is 
called  upon  to  deal  with  the  question,  and  that  when 
the  war  closed  the  President  was  called  upon  to  deal 
with  the  question,  for  it  became  his  duty  to  see  that 
the  laws  of  the  United  States  were  executed  in  the 
southern  States,  and  that  they  were  in  proper  prac- 
tical relations  with  the  United  States." 

Here  he  affirms  that  it  was  the  duty  of  the 
President  at  the  close  of  the  war  to  execute 
this  guarantee,  because  the  question  was  pre- 
sented to  him,  namely,  that  these  States  had 
not  republican  forms  of  government  as  required 
by  the  Constitution. 

He  says,  again : 

"  Two  years  ago— and  I  then  had  the  assent  to  my 
proposition  by  the  nod  cf  the  distinguished  Senator 
from  Ohio,  [Mr.  WADE]— I  expressed  as  my  opinion, 
which  I  hold  yet,  that  by  virtue  of  this  constitutional 
obligation  to  guaranty  a  republican  form  of  govern- 
ment, it  is  competent  for  the  United  States  through 
*the  proper  department  to  do  what  will  enable  the- 
people  to  exercise  their  sovereignty  of  amending 
their  constitution,  and  bringing  it  into  practical  re- 
lations to  the  United  States.  The  President  pro- 
claimed that  when  the  people  themselves  have  thus 
amended  their  constitution  and  placed  it  in  harmony 
with  the  Government  of  the  United  States  it  will  be 
recognized  by  the  executive  department. 

"His  purpose,  then,  was  to  aid  the  people,  to  give 
them  the  support  of  an  organization,  just  as  Congress, 
without  any  constitutional  provision  on  the  subject, 
gives  the  people  of  a  Territory  an  enabling  act,  not 
because  Congress  has  the  power  as  an  original  thing 
to  establish  a  territorial  government,  but  because 
Congress  has  the  power  to  admit  new  States  into  the 
Union,  Congress  may  do  that  which  will  enable  the 
people  to  form  State  governments.  So  the  Execu- 
tive in  this  case,  in  my  judgment,  very  properly  did 
that  which  would  enable  the  people  to  bring  their 
State  into  practical  relations  with  the  Government." 


Now,  when  it  becomes  necessary  for  the 
Senator  to  support  the  policy  of  the  Adminis- 
tration he  aflirms  that  the  circumstances  of 
the  rebel  States  demand  the  execution  of  this 
guarantee  at  the  hands  of  the  Executive,  and 
he  assimilates  the  proclamation  of  the  Presi- 
dent to  an  enabling  act  of  Congress.  He  says 
that  as  Congress  enacts  enabling  acts  for  the 
Territories  so  the  President  by  proclamation 
may  proceed  to  enable  these  States  to  resume 
their  practical  relations  to  the  Union.  The 
Senator  has  affirmed  more  than  once  that  the 
object  of  the  President  in  providing  these 
conventions  was  to  enable  the  people  to 
alter  and  amend  their  constitutions  ;  but  the 
President  himself  said  in  his  proclamations 
that  the  primary  object  of  the  proclama- 
tions was  to  enable  those  people  "to  form 
State  governments."  I  give  his  exact  lan- 
guage : 

'"Now,  therefore,  in  obedience  to  the  high  and 
solemn  duties  imposed  upon  me  by  the  Constitution 
of  the  United  States,  and  for  the  purpose  of  enabling 
the  loyal  people  of  said  State  to  organize  a  State 
government,"  <fec. 

The  Senator  from  Indiananpon  this  subject,  it 
seemed  tome,  made  some  very  tine  distinctions. 
He  justified  Johnson  because  his  proclamation, 
as  he  says,  only  empowered  the  conventions  to 
alter  and  amend  the  old  constitutions,  and  he 
condemned  Congress  because  the  laws  of  Con- 
gress authorized  the  people  to  form  new  con- 
stitutions. Does  not  the  Senator  know  that  the 
power  in  a  convention  to  alter  and  aineu'd  a 
constitution  is  equivalent  to  a  power  to  make 
a  new  constitution  ?  Every  provision  tuid  fea- 
ture of  the  old  constitution  may  be  abolished 
and  new  ones  put  in  their  places  and  so  the 
change  may  be  completely  made;  and  yet  ac- 
cording to  the  Senator's  argument  it  is  consti- 
tutional and  proper  for  the  President  to  provide 
for  such  a  convention  by  proclamation,  but  it 
is  usurpation  and  tyranny  for  Congress  to  pro- 
vide by  law  for  a  convention  to  form  a  State 
constitution. 

I  maintain  that  under  the  guarantee  clause 
of  the  Constitution  these  reconstruction  acts 
can  be  fully  vindicated.  Congress  is  required 
to  execute  a  certain  power  described  in  the 
Constitution ;  and  the  Senator  will  not  deny 
that  Congress  may  employ  all  the  means  ne- 
cessary and  proper  to  execute  that  particular 
power.  May  not  Congress  use  the  military 
arm  of  the  United  States  to  execute  that  power 
if  in  its  judgment  such  means  are  necessary  ? 
Cannot  Congress  enforce  any  law  which  it  may 
enact  by  the  use  of  the  military  power  of  the 
country?  Suppose  a  combination  of  persons 
should  resist  the  collection  of  the  customs  at 
New  York,  could  not  the  military  power  of 
the  United  States  be  employed  to  enforce  the 
laws?  Nobody,  it  seems  to  me.  can  contro- 
vert that  position ;  and  so,  for  the  purpose  of 


13 


executing  ibis  power,  Congress  may  employ  the 
military  force  of  the  United  States.  That  is 
one  of  the  objects  for  which  this  war  was  pros- 
ecuted, as  I  think  I  can  very  readily  show.  I 
refer  to  the  twelfth  volume  of  the  United  States 
Statutes-at-Large,  page  731,  where  will  be  found 
an  act  entitled  liAn  act  for  enrolling  and  call- 
ing out  the  national  forces,  and  for  other 
purposes/'  The  preamble  of  that  act  is  as 
follows : 

"  Whereas  there  now  exists  in  the  United  States  an 
insurrection  and  rebellion  against  the  authority 
thereof,  and  it  is,  nndcr  the  Constitution  of  the  Uni- 
ted State?,  the  duty  of  the  Government  to  suppress 
insurrection  and  rebellion,  to  guaranty  to  each  State 
a  republican  form  of  government,  and  to  preserve  the 
public  tranquillity;  and  whereas  for  these  high  pur- 
poses a  military  force  is  indispensable,  to  raise  and 
support  which  all  persons  ought  willingly  to  con- 
tribute; and  whereas  no  service  can  be  more 
praiseworthy  and  honorable  than  that  which  is 
rendered  for  the  maintenance  of  the  Constitution 
and  Union  and  the  consequent  preservation  of  free 
government." 

In  March,  1863,  in  the  act  providing  for 
enrolling  and  calling  out  the  national  forces 
of  the  United  States,  it  was  declared  that  one 
purpose  of  raising  a  military  force  was  to  guar- 
anty to  each  one  of  these  States  a  republican 
form  of  government.  Armies  were  to  be  raised 
not  only  to  suppress  the  rebellion  but  to  fol- 
low up  that  act  by  guarantying  to  each  of  the 
rebel  States  a  republican  form  of  government; 
and  so  at  that  early  day  Congress  made  this 
declaration  and  committed  itself  to  this  pol- 
icy, and  to-day  Congress,  in  using  the  mili- 
tary power  of  the  country  to  execute  that  pro- 
vision of  the  Constitution,  is  only  following 
out  the  plan  which  it  adopted  at  an  early  day 
in  the  war. 

"  I  ought,  perhaps,  to  proceed  and  show  what 
President  Johnson  has  done  to  indicate  that 
these  reconstruction  acts  of  Congress  are  only 
organizing  by  law  a  military  power  that  was 
exercised  in  these  States  up  to  the  day  these 
laws  were  enacted,  at  the  will  and  pleasure  of 
President  Johnson.  Has  anybody  forgotten 
that  when  under  the  laws  of  the  Johnson  gov- 
ernments Monroe  was  elected  mayor  of  New 
Orleans  the  President  arbitrarily  ejected  him 
from  office?  Has  anybody  forgotten  that 
when  Semmes  was  elected  judge  in  Mobile 
Andrew  Johnson  summarily  and  arbitrarily 
ejected  him  from  office?  Has  anybody  for- 
gotten the  military  orders  of  the  executive 
department  that  were  issued  and  put  in  force 
in  the  rebel  States  long  after  it  was  pretended 
that  the  States  were  fully  organized  under  the 
Johnson  governments?  The  President,  as  Com- 
mander-in- Chief,  is  responsible  for  these  or- 
ders, and  they  show  that  the  pretended  civil 
governments  which  Johnson  had  set  up  in  the 
rtibel  States  were  subordinate  to  and  controlled 


by  the  military  decrees  of  the  President.     I 
will  read  them : 

[General  Order,  No.  3.] 

~\VAU  DEPARTMENT, 
ADJUTANT  GENERAL'S  OFFICE, 

WASHINGTON  January  12, 1866. 
To  protect  persons  against  improper  civil  suits  and 

penalties  in  late  rebellious  States: 

Military  division  and  department  commanders 
whose  commands  embrace  or  arc  composed  of  any  of 
the  late  rebellious  States,  and  who  have  not  already 
done  so,  will  at  once  issue  and  enforce  orders  pro- 
tecting from  prosecution  or  suits  in  the  State  or  mu- 
nicipal courts  of  such  State  all  officers  and  soldiers 
of  the  armies  of  the  United  States  and  all  persons 
thereto  attached,  or  in  any  wise  thereto  belonging, 
subject  to  military  authority,  charged  with  offenses 
for  acts  done  in  their  military  capacity  or  pursuant 
to  orders  from  piopcr  military  authority;  and  to  pro- 
tect from  suit  or  irosecution  all  loyal  citizens  or  per- 
sons charged  with  offenses  done  against  the  rebel 
forces,  directly  or  indirectly,  during  the  existence  of 
the  rebellion;  and  all  persons,  their  agents  and  em- 
ploy6s,  charged  with  the  occupancy  of  abandoned 
lands  or  plantations  or  the  possession  or  custody  of 
any  kind  of  property  whatever  who  occupied,  used, 
possessed,  or  controlled  the  same  pursuant  to  the 
order  of  the  President  or  any  of  the  civil  or  military 
departments  of  the  Government,  and  to  protect  them 
from  any  penalties  or  lamages  that  may  have  been 
or  may  be  pronounced  ->r  adjudged  in  said  courts  in 
any  of  such  cases;  and  also  protecting  colored  per- 
sons from  prosecutions  it  any  of  said  States  charged 
with  offenses  for  which  white  persons  are  not  prose- 
cuted or  punished  in  the  tame  manner  and  degree.. 

By  command  of  Lieutentnt  General  Grant: 

E.  D.  TOWNSEND. 
Assistant  Adjutant  General. 

As  late  as  July,  1866,  this  order  -was  issued : 

[General  Ordeis,  No.  44.] 
HEADQUARTEES  OF  THE  ARMY, 
ADJUTANT  GENERAL'S  OFFICE, 

WASHINGTON,  July  16, 1866. 

Department,  district,  and  post  commanders  in  the 
States  lately  in  rebellion  are  hereby  directed  to 
arrest  all  persons  who  have  been  or  may  hereafter  be 
charged  with  the  commission  of  crimes  and  offenses 
against  officers,  agents,  citizens,  and  inhabitants  of 
the  United  States,  irrespective  of  color,  in  cases  where 
the  civil  authorities  have  failed,  neglected,  or  are  un- 
able to  arrest  and  bring  such  parties  to  trial,  and  to 
detain  them  in  mil  itary  confinement  until  such  time  aa 
a  proper  judicial  tribunal  maybe  ready  and  willing 
to  try  them. 

A  strict  and  prompt  enforcement  of  this  order  is 
required. 
By  command  of  Lieutenant  General  Grant: 

E.  D.  TOWNSEXD, 
Assistant  Adjutant  General. 

But,  sir,  besides  all  this,  President  Johnson 
expressly  revoked  the  suspension  of  the  writ  of 


14 


habeas  corpus  in  the  loyal  States  of  the  Union  ; 
but  he  has  never  made  any  proclamation  ex- 
pressly revoking  the  suspension  of  the  writ  of 
habeas  corpus  in  the  rebellious  States.  True, 
he  has  issued  proclamations  of  peace,  which  he 
has  flourished  before  the  world  ;  but  while  he 
esteemed  it  necessary  expressly  to  revoke  the 
suspension  of  the  writ  of  habeas  corpus  in  the 
loyal  States,  he  has  been  careful  to  issue  no 
such  proclamation  as  to  the  rebel  States.  When 
he  issued  his  proclamation  of  peace  a  letter 
was  addressed  to  him  asking  him  if  that  re- 
stored the  writ  of  habeas  corpus  in  the  southern 
States,  and  the  answer  was  that  it  did  not  have 
that  effect. 

Much  has  been  said  as  to  the  meaning  of  the 
guarantee  clause  of  the  Constitution.  I  shall 
not  undertake  upon  this  occasion  elaborately 
to  define  the  meaning  of  that  clause.  Common 
men  know  in  common  parlance  what  it  means 
to  guaranty  the  payment  of  a  debt.  It  means 
that  if  the  debtor  does  not  par,  the  guarantor 
will,  and  this  clause  of  the  Constitution  simply 
means  that  if  the  people  of  a  State  do  not  estab- 
lish and  maintain  a  republican  form  of  gov- 
ernment, the  United  States  vill  do  it.  There 
are  two  ideas  prominent  in  this  clause.  One 
is  that  the  State  governme»t  must  be  in  sub- 
ordination to  the  Constitution  of  the  United 
States,  and  the  other  that  it  must  besuch'as  to 
give  the  people  of  the  State  substantial  repre- 
sentation in  and  control  OTer  the  State  govern- 
ment. Can  a  State  government  be  republican 
in  form  according  to  the  meaning  of  the  Con- 
stitution and  not  be  subordinate  to  and  in  har- 
mony with  the  Constitution  ?  No  matter  how 
perfect  the  forms  of  government  in  the  rebel 
States,  if  they  were  in  open  hostility  to  the 
Constitution  and  laws  of  the  country  they  were 
not  republican  in  form  in  the  sense  of  the  Con- 
stitution, and  it  therefore  became  the  duty  of 
the  United  States  to  execute  the  guarantee  and 
make  those  governments  what  the  framers  of 
the  Constitution  inter.ded  they  should  be — inte- 
gral and  inseparable  parts  of  the  Federal  Union. 

These  State  goveraments,  too,  must  be  such 
as  entitle  the  people  to  full  and  fair  represent- 
ation in  them.  I  know  there  is  no  absolute 
standard  by  which  to  determine  what  is  or  is  r.ot 
a  republican  form  of  government.  All  we  can 
do  is  to  consult  history,  particularly  the  history 
of  our  ow-n  Government,  and  then,  according 
to  our  best  judgment,  determine  whether  the 
government  of  a  State  is  or  is  not  republican 
in  form.  I  will  not  undertake  to  say  that  a 
State  government  which  tolerates  slavery  is 
not  republican  in  form,  for  such  governments 
were  recognized  by  the  fathers  of  the  Repub- 
lic ;  but  I  undertake  to  say  that  history  does 
not  produce  a  case  where  one  half,  or  a  ma- 
jority, or  even  one  third  of  the  free  male  cit- 
izens of  a  State  have  been  excluded  from  all 
political  power  under  a  republican  form  of 
government. 


The  question  in  the  rebel  States  is  not  as  to  the 
rights  of  slaves,  but  it  is  as  to  the  rights  of  free 
male  citizens  of  the  United  States.  Tell  me,  if 
you  can,  of  a  single  example  in  history  where 
a  great  proportion  of  the  free  male  citizens  of 
a  State  have  been  excluded  from  all  political 
power  under  a  republican  form  of  government. 
Judging  from  history  we  should  be  justified  in 
interfering  with  the  governments  in  the  rebel 
States,  because  in  some  of  them  one  half  of 
the  male  citizens  and  in  the  others  more  than 
a  third  are  excluded  from  the  right  of  suffrage 
and  from  any  representation  in  the  government. 
I  cannot  see  how  any  government  founded  upon 
that  basis  is  consistent  with  just  ideas  of  a 
republican  form  of  government. 

Congress  must  decide  this  question.  I  know 
it  may  be  said  that  Congress  may  abuse  the 
power,  but  the  same  argument  applies  to  any 
power  conferred  upon  Congress.  Congress  has 
power  to  declare  war.  That  power  may  be 
abused  ;  Congress  may  plunge  the  nation  into 
a  wanton  and  fruitless  war  and  imperil  the  life 
and  property  of  every  man,  woman,  and  child 
in  the  nation  ;  but  is  that  any  argument  to  prove 
that,  the  power  does  not  exist?  The  United 
States  are  to  guaranty  to  each  State  a  repub- 
lican form  of  government,  and  Congress  has 
the  unlimited  power  to  say  what  is  or  what  is 
not  a  republican  form  of  government  under 
its  responsibility  to  the  people.  The  Supreme 
Court  of  the  United  States  has  affirmed  that 
doctrine.  Take  what  the  court  says  in  refer- 
ence to  a  possible  government  in  Rhode  Island. 
In  Luther  vs.  Borden  Chief  Justice  Taney 
says : 

"  Unquestionably  amilitary  government  established 
as  the  permanent  government  of  the  State  would  not 
be  a  republican  government,  and  it  would  be  the  duty 
of  Congress  to  overthrow  it." 

The  right  of  Congress  to  enter  a  State  and 
overthrow  a  government  which  the  people 
have  adopted  is  clearly  recognized  in  this  de- 
cision. In  the  twelfth  volume  of  Wheaton's 
Reports,  in  the  case  of  Marton  vs.  Mott,  the 
Supreme  Court,  in  discussing  a  kindred  ques- 
tion, said: 

"Whenever  a  statute  gives  discretionary  power  to 
any  person,  to  be  exercised  by  him  upon  his  own 
opinion  of  certain  facts,  it  is  a  sound  rule  of  construc- 
tion that  the  statute  constitutes  him  the  sole  and 
exclusive  judge  of  the  existence  of  those  facts." 

Congress  is  required  by  the  Constitution  to 
determine  the  fact — it  may  be  a  mixed  ques- 
tion of  law  and  of  fact — whether  the  State  of 
Louisiana,  for  example,  has  or  has  not  a  repub- 
lican form  of  government,  and  Congress  being 
invested  with  that  power  its  judgment  is  con- 
clusive. Congress  is  made  the  sole  and  ex- 
clusive judge  of  the  fact.  It  is  not  necessary 
to  assume  that  these  States  are  out  of  the 
Union  in  order  to  justify  the  exercise  of  this 


15 


power  on  the  part  of  Congress.  Have  Sena- 
tors noticed  the  phraseology  of  the  guarantee 
clause  of  the  Constitution? 

"The  United  States  shall  guaranty  to  every  State 
in  this  Union  a  republican  form  of  government." 

Does  not  the  Constitution  clearly  recognize 
the  right  of  Congress  to  control  in  this  respect 
the  government  of  a  State  in  the  Union? 
Nothing  is  said  about  the  power  of  Congress 
as  to  a  State  out  of  the  Union.  The  great 
argument  of  the  Democratic  party  on  this 
question  is  that  the  Republicans  assume,  by 
the  exercise  of  these  powers,  that  these  States 
are  out  of  the  Union.  I  never  heard  any 
man  who  belonged  to  that  party  say  that  these 
States  were  out  of  the  Union,  notwithstanding 
those  opposed  to  us  continually  reiterate  that 
accusation.  I  say — and  so  far  as  I  know  those 
with  whom  I  act  all  say — that  those  States  are 
in  the  Union,  and  that  the  United  States  has 
a  right  to  exercise  this  power  upon  them  as 
States  in  the  Union. 

Mr.  President,  I  did  propose  to  say  more, 
but  the  time  allotted  to  me  by  the  vote  of  the 
Senate  is  about  exhausted.  ["Goon."]  I 
shall  not  undertake  to  argue  the  necessity  of 


this  legislation  or  its  expediency  at  this  time. 
If  it  be  necessary  to  organize  governments  that 
will  give  equal  protection  to  the  poor  and  weak 
as  to  thf  rich  and  the  s*-ong — if  it  be  necessary 
to  organize  and  maintain  governments  that  will 
countenance  obedience  to  law  and  loyalty  to 
the  Government  and  frown  upon  disloyalty, 
treason,  and  crime — then  I  say  there  is  a  neces- 
sity for  this  legislation.  Sir,  if  it  be  expedient 
to  do  right  and  be  just,  then  it  is  expedient  to 
enact  these  laws. 

I  will  simply  say,  in  conclusion,  that  in  my 
judgment  it  is  not  within  the  constitutional 
power  of  the  executive  or  judicial  departments 
of  the  Government  to  determine  when  an  in- 
surrection does  or  does  not  exist  contrary  to 
the  decision  of  Congress ;  that  it  is  the  exclu- 
sive right  of  the  legislative  department  of  the 
Government  to  decide  upon  the  form  of  a 
State  government  and  its  relations  to  the  Fed- 
eral Union,  and  that  under  all  the  circum- 
stances the  course  adopted  by  Congress  for 
the  rehabilitation  of  the  rebel  States  is  the 
only  efficient  and  practicable  one  to  restore 
general  tranquillity,  to  maintain  justice,  to  pro- 
tect the  Constitution,  and  perpetuate  the 

UniOD-  Bancroft 


I 


